Insured's credibility questioned when not consistent or accurate with assessors

August 16, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Susan Sapin

Date of Decision: June 30, 2016

Issues:

Jonathan Leduc-Moreau was 19, and the passenger in the car, when he was injured in a high speed roll-over car accident on March 8, 2009. He and the driver of the vehicle were on their way home after an evening drinking alcohol and smoking marijuana at a rock concert at Casino Rama. Both were intoxicated when they got into the car. Mr. Leduc-Moreau recalled being alarmed by his friend’s driving and removing his seat belt so that he could get out of the car just before the crash. When the vehicle hit the ditch, his head hit the dashboard, and the next thing he remembered was being found by a passerby about 70 feet from the vehicle. He did not know whether he had been ejected or wandered from it. He was taken to hospital by ambulance with a large deep cut and bruise on the left side of his scalp and fractures to the C6 and C7 vertebrae in his neck, surgically repaired the next day. He suffered a mild traumatic brain injury (“TBI”), right sided vocal cord paralysis – most likely a result of the surgery - and a damaged thoracic nerve which caused weakness and winging of his right shoulder blade.

Mr. Leduc-Moreau applied for and received statutory accident benefits from Echelon payable under the Schedule. In July 2010, Mr. Leduc-Moreau applied to Echelon for a determination that he met the criteria for catastrophic impairment as a result of his accident-related injuries. His major complaints are of constant chronic pain in his lower back, shoulders, neck and hip that increase in severity with activity; sleep disturbance; difficulties with concentration and memory; depression and anxiety; episodes of daily vomiting and an inability to return to employment.

In December 2011 Echelon conducted a multidisciplinary insurer’s assessment (CAT IE) which concluded that his accident-related impairments were not catastrophic as defined by the Schedule. Mr. Leduc-Moreau disputes this finding. The parties were unable to resolve their disputes through mediation, and Mr. Leduc-Moreau applied for arbitration the FSCO.

The preliminary issue in this hearing is:

1. Did Mr. Leduc-Moreau suffer a catastrophic impairment as defined in ss. 2(1)(1.2)(f) or (g) of the Schedule?

Result:

1. Mr. Leduc-Moreau did not suffer a catastrophic impairment under the Schedule.

Mr. Leduc-Moreau claims that his accident injuries and resulting psychological difficulties including cannabis dependence qualify as catastrophic impairments under two of seven possible categories under the Schedule. He claims physical and mental and behavioural impairments that together result in a 55 per cent impairment of the whole person (WPI), and a class 4 (marked impairment) or a class 5 (extreme impairment) due to a mental or behavioural disorder resulting from the accident.

The Schedule requires that the degree of impairment be measured and rated by qualified health professionals according to criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment two years post-accident to allow for the person`s condition to have stabilized.

In effect this case turns solely on whether Mr. Leduc-Moreau can prove his claim, on a balance of probabilities, that he suffered a marked mental behavioural impairment in the functional category referred to as “adaptation” as a result of the accident.  The Arbitrator reviewed the AMA guides and definitions and noted that for his impairment levels to be considered marked in the area of adaptation, and therefore catastrophic he must show that his impairment levels significantly impede useful functioning in that domain.

There is no dispute that Mr. Leduc-Moreau suffered emotional distress in the form of depression and anxiety after the accident, that he complained of pain and difficulties with memory and concentration, and that he uses cannabis to function. At issue is the degree to which these impairments have affected his behaviour and limited his useful functioning after the accident.

The Arbitrator reviewed the medical evidence and noted that almost two and a half years after the accident Mr. Leduc-Moreau had been diagnosed with chronic PTSD and Cannabis dependence, he had used hard drugs since his accident, and had adjustment disorder and depressed mood. He was also diagnosed with Cognitive Disorders (not otherwise specified).

Mr. Leduc-Moreau’s complaints of chronic daily pain and “significant sense of loss because of his physical impairments and inability to do what he loves or to pick up his son safely without fear of dropping him” were noted. His own assessor, Dr. L, indicated that Mr. Leduc-Moreau had a marked impairment in the domain of adaptation was based primarily on the fact that he was dependent on cannabis, using it to cope with pain and agitation. It was noted that he often withdraws from conversations feeling overwhelmed and unable to keep track. His life is largely spent at home with very simple activity in a simple environment, frequently smoking marijuana even to cope in this environment. His current psychological state can be regarded as deteriorated, and he deteriorates further under ordinary stressors: withdrawing, isolating, and leaving tasks incomplete.

In his testimony, Dr. L stated that Mr. Leduc-Moreau needed to be “high” to adapt. His conclusion was that Mr. Leduc-Moreau was unemployable from a psychological and neuropsychological perspective, and disabled from performing employment in accordance with his education, experience and training.  Dr. L’s opinion is undermined by other evidence presented at the hearing, which indicates Mr. Leduc-Moreau suffered from emotional difficulties, including lability and anger-management; had cognitive impairments; and used marijuana daily before the accident, and there was evidence that his accident-related impairment levels are compatible with some, but not all, useful functioning, which would place him at the moderate level in the adaptation category.

Mr. Leduc-Moreau was able to work in a warehouse in New Brunswick for six months from November 2013 to May 2014, and despite his complaints of pain and cognitive difficulties, he has engaged in activities since the accident that demonstrate an ability to function usefully in a wide range of activities similar to those he engaged in before the accident. His impairments have not significantly impeded his ability to function in and enjoy family life, pursue his interest in buying, fixing and re-selling used cars, or spend time outdoors. The evidence showed that Mr. Leduc-Moreau was not always accurate or consistent in what he told assessors, and they did not always have relevant historical or collateral information, which undermined their opinions.

The Arbitrator examined Mr. Leduc-Moreau’s[MO1] [MO2]  pre-accident life. She noted that Mr. Leduc-Moreau’s pre-accident employment choices were influenced not only by his preferences, but likely also relate to his difficulties in school. He has always worked at his own pace in unskilled and unscheduled environments doing seasonal manual labour or handy-man type jobs for cash.

The limited school records available indicate he had serious behavioural problems in elementary school and his academic performance was below age expectations, particularly in language arts, where considerable accommodation was required. Dr. L thought it possible that Mr. Leduc-Moreau had a long-standing learning disability. Mr. Leduc-Moreau’s sister Chantal, who grew up with him and was able to describe his pre-and post-accident behaviour in detail, was convinced of it, and that it went undiagnosed. On the basis of the evidence the Arbitrator concluded that Mr. Leduc-Moreau suffered from cognitive difficulties that pre-dated the accident.

The Arbitrator noted that pre-accident evidence changed Dr. L’s opinion at the hearing and when confronted with that evidence, Dr. L candidly admitted that it would have changed his opinion. During his assessment of Mr. Leduc-Moreau, Dr. L did not have any specific information about cannabis use before the accident, which Mr. Leduc-Moreau himself stated was 3 – 4 grams per day.

The Arbitrator concluded that there was little evidence that Mr. Leduc-Moreau’s life after the accident was much different than before regarding the adaptation category, or that his accident-related mental and behavioural impairments were other than moderate. Arbitrator Sapin found his impairments have not much modified his marijuana use or changed the impact it has had on his life.

Arbitrator Sapin did not find Mr. Leduc-Moreau to be a credible witness based on evidence and testimony, and she agreed with Echelon’s submission, that Mr. Leduc-Moreau was prone to overstating his impairments, and could not be taken at face value.

Echelon was entirely successful in this proceeding, and further submits that the conduct of and on behalf of the Applicant resulted in unnecessary delay bordering on obstruction. Moreover, Mr. Leduc-Moreau and his counsel failed to comply with undertakings and orders, despite being granted adjournments to do so, including one of over a year, all of which added to the delays.

Taking these factors into account, Arbitrator Sapin awarded Echelon partial expenses of the arbitration proceeding and legal fees.

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